Small Mercies

Eamonn Dornan emails to say that the Dolours Price interview materials at Boston College will not go directly to the police in Northern Ireland as a result of the First Circuit's decision last week. A stay remains in place in forty-five days.

A Lot of Very Bad News

In Belfast today, a judge refused to issue a preliminary injunction to prevent the PSNI from taking receipt of subpoenaed IRA interview material held at Boston College. [Added later, here's a note from Anthony McIntyre: "It is uncertain that the judge in Belfast refused an injunction.  I don’t think it got to that stage. He just declined to let the application go ahead as he didn’t consider it urgent."]

In Boston, the First Circuit rejected the legal appeal filed by Belfast Project researchers Ed Moloney and Anthony McIntyre. The opinion is below. I haven't read it yet, but a separate one-page order affirms the orders of the District Court. A separate appeal from Boston College is pending, but challenges only the lower court's orders regarding a set of interviews with former IRA member Dolours Price. Another set of seven interviews were also the subject of Moloney and McIntyre's appeal, but not of the appeal filed by Boston College. [In a hurry, I got this backward: BC's appeal covers the later seven interviews, but not the interviews with Dolours Price. Those are the materials that may end up in police hands very soon.] Barring an immediate appeal to the Supreme Court, those interviews will likely be handed over to the U.S. Attorney's Office in Boston very shortly, and from there to the British government, which will hand them over to the Police Service of Northern Ireland.

Bottom line: Many confidential materials from a protected academic archive may very shortly be delivered to the police.

Decision is below.
First Circuit Decision in Mm Appeal

The Kevin Na of Government Lawyers

The U.S. Attorney's Office in Boston owes the First Circuit a response to Boston College's appeal over the second round of Belfast Project subpoenas. But they can't quite bring themselves to pull the trigger, the poor things: 

MOTION to extend time to file brief filed by Appellee US. Certificate of service dated 06/05/2012. [12-1236] (REK) 06/06/2012

ORDER granting motion to extend time to file brief filed by Appellee US. Brief due 07/06/2012 for appellee United States. [12-1236] (AS) 07/05/2012

MOTION to extend time to file brief filed by Appellee US. Certificate of service dated 07/05/2012. [12-1236] (REK) 07/06/2012

ORDER granting motion to extend time to file brief filed by Appellee US. Brief due 07/13/2012 for appellee United States. [12-1236] (AS)

In their latest motion, the government says they need more time to file their brief because everybody was out of the office for the July 4th holiday. And let's be fair: how could they possibly have anticipated that? (Where have I heard this before?)

In other news, the U.S. Attorney's Office recently replaced the lawyer assigned to promulgate the subpoenas as a commissioner under the terms of the Mutual Legal Assistance Treaty. Sixteen months after the subpoenas first went out, they're on their third commissioner.

 Blown deadlines, musical chairs, weak oral argument: this is an office that is going through the motions for a case they don't like.

Boston College Subpoenas Challenged in Belfast Courts

Former Belfast Project researcher Anthony McIntyre has filed a new legal challenge in Northern Ireland against the Boston College IRA subpoenas. While the long fight against the subpoenas has so far taken place in American courts, this effort opens a new front, challenging the subpoenas in the UK. The initial brief in this new lawsuit appears at the bottom of this post.

Most immediately, the brief asks the court to issue an interim injunction that would forbid the PSNI or the government of the UK from "taking custody" of the subpoenaed materials while the court considers the legal issues in the case. The outcome of that request should be clear in a very few days, while two legal appeals remain pending in the US -- one of which won't even be argued before September.

But the separate appeal filed by Belfast Project researchers Ed Moloney and Anthony McIntyre was heard back in May, and should decided any day, now. It's a broader appeal than the one filed by Boston College, covering a wider range of subpoenaed material. So the immediate issuance of a temporary injunction in the UK could become significant in the very near future if Moloney and McIntyre lose their appeal in Boston -- it would mean that the Department of Justice would get confidential IRA interviews on behalf of the UK that officials in the UK would be forbidden to accept.

Beyond that request for a temporary injunction, McIntyre's appeal seeks to kill off the subpoenas for good. The brief below makes several requests and several arguments, asking that the court declare the government's decision to request the subpoenas unlawful and beyond its powers.

Like the legal challenges brought by McIntyre and Moloney in the US, the Belfast lawsuit points to the language of the Mutual Legal Assistance Treaty under which the UK asked American officials to pursue the subpoenas. That treaty requires that requests between the two countries be analyzed according to particular criteria, protecting the political interests of both parties and preventing the use of legal assistance treaties to pursue political offenses.

See, especially, pg. 5, where the brief filed by McIntyre's solicitor argues that the government of the UK "failed, pursuant to Article 18 of the MLAT, to consult with the Attorney General of the United States regarding the United Kingdom's rights or obligations 'under another bilateral multilateral agreement relating to the subject matter of this Treaty' which includes, but is not limited to the Good Friday Agreement."

In the US, officials have argued that the terms of the legal assistance treaty are assigned to the discretion of the Attorney General, who can ignore them if he feels like it, and no one can do anything about it. So the courts in both the US and the UK are now asked to decide how Mutual Legal Assistance Treaties can be enforced, and who has standing to enforce them. What happens if the legal systems of two countries offer differ answers about the enforcement of a treaty between them?

The brief also makes an argument for academic freedom, although not quite in that formulation, arguing that the subpoenas interfere with McIntyre's "freedom of expression, including but not limited to his right to prevent the disclosure of information received in confidence."

And it argues that the subpoenas endanger McIntyre and his family, a contention that government lawyers in the US have casually dismissed.

An important set of questions -- now being considered by judges in two countries.

More soon. Brief follows:
Belfast Court Initial Filing